REPUBLIC OF SOUTH AFRICA LEGAL PRACTICE BILL (As introduced in the National Assembly (proposed section 75), explanatory summary of Bill published in Government Gazette No.... of...)(the English text is the official text of the Bill) (MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT) [B 2012]
2 011210nb BILL To provide a legislative framework for the transformation and restructuring of the legal profession in line with constitutional imperatives; to provide for the establishment, powers and functions of a single South African Legal Practice Council and Regional Councils in order to regulate the affairs of legal practitioners and set norms and standards; to provide for the admission, enrolment and registration of legal practitioners; to regulate the professional conduct of legal practitioners so as to ensure accountable conduct; to provide for the establishment of an Office of a Legal Services Ombud and the appointment, powers and functions of a Legal Services Ombud; to provide for an Attorneys Fidelity Fund and an Attorneys Fidelity Fund Board of Control; to provide for the establishment, powers and functions of a Transitional South African Legal Practice Council; and to provide for matters connected therewith. Preamble WHEREAS section 22 of the Bill of Rights of the Constitution establishes the right to freedom of trade, occupation and profession, and provides that the practice of a trade, occupation or profession may be regulated by law; AND BEARING IN MIND THAT * the legal profession is regulated by different laws which apply in different parts of the national territory and, as a result thereof, is fragmented and divided; * access to affordable legal services is not a reality for most South Africans; * the legal profession is not representative of the demographics of South Africa; * entry into the legal profession is, in some respects, dependent on compliance with
outdated, unnecessary, and overly restrictive prescripts; * access to legal services is limited; 3 AND IN ORDER TO * provide a legislative framework for the transformation and restructuring of the legal profession into a unified profession which is representative of the Republic s demographics; * ensure that the values underpinning the Constitution are embraced and that the rule of law is upheld; * ensure that legal services are affordable and within the reach of the citizenry; * regulate the legal profession, in the public interest, by means of a single statute; * remove any barriers for entry into the legal profession; * strengthen the independence of the legal profession; and * ensure the accountability of the legal profession to the public. BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows: CONTENTS OF THE ACT Sections CHAPTER 1 DEFINITIONS, APPLICATION AND PURPOSE OF ACT 1. Definitions 2. Application of Act 3. Purpose of Act
4 CHAPTER 2 SOUTH AFRICAN LEGAL PRACTICE COUNCIL Part 1 Establishment, powers and functions of South African Legal Practice Council 4. Establishment of Council 5. Objects of Council 6. Powers and functions of Council 7. Composition of Council 8. Membership of Council 9. Chairperson and Deputy Chairperson 10. Term of office 11. Termination of office 12. Vacation of office 13. Filling of vacancies 14. Dissolution of Council Part 2 Operation of Council 15. Meetings of Council 16. Quorum and procedure at meetings of Council 17. Decisions of Council 18. Committees of Council 19. Executive officer and employees of Council 20. Executive committee of Council 21. Delegation of powers and assignment of functions of Council 22. Finances, expenditure and accountability of Council
5 23. Establishment of Regional Councils CHAPTER 3 REGULATION OF LEGAL PRACTITIONERS 24. Admission and enrolment 25. Right of appearance 26. Minimum qualifications and practical vocational training 27. Practical vocational training 28. Assessment of practical vocational training 29. Prescription of community service 30. Registration with Council 31. Cancellation and suspension of registration 32. Conversion of registration 33. Authority to render legal services 34. Forms of legal practice 35. Fee structure of legal practitioners, juristic entities and justice centres CHAPTER 4 PROFESSIONAL CONDUCT AND ESTABLISHMENT OF DISCIPLINARY BODIES 36. Code of conduct 37. Establishment of disciplinary bodies 38. Procedure for dealing with complaints of misconduct 39. Disciplinary hearing 40. Proceedings after disciplinary hearing and remedial action 41. Review by Legal Services Ombud 42. Appeal against decision of disciplinary committee 43. Monitoring by Legal Services Ombud 44. Urgent legal proceedings
6 45. Powers of High Court CHAPTER 5 LEGAL SERVICES OMBUD 46. Establishment of Office of Legal Services Ombud 47. Objects of Ombud 48. Appointment and independence of Ombud 49. Powers and functions of Ombud 50. Remuneration and other terms and conditions of employment of Ombud 51. Removal from office and filling of vacancies 52. Staff, finances and accountability of Office of Legal Services Ombud 53. Annual report CHAPTER 6 ATTORNEYS FIDELITY FUND Part 1 Establishment of Fund and founding provisions 54. Continued existence of Attorneys Fidelity Fund 55. Revenue of Fund 56. Liability of Fund 57. Limitation of liability of Fund 58. Purpose and application of Fund 59. Attorneys Fidelity Fund Account 60. Financial year of Fund 61. Fund exempt from certain tax and insurance laws
7 62. Establishment of Board Part 2 Operation of Fund 63. Composition of Board 64. Powers and functions of Board 65. Qualification for membership of Board 66. Appointment of chairperson and deputy chairperson of Board 67. Vacancies in Board 68. Term of office of members of Board 69. Vacation of office 70. Meetings and resolutions of Board 71. Committees of Board 72. Certificate in respect of liabilities of Fund and investment of money in Fund 73. Annual review by actuary 74. Contributions to Fund by attorneys 75. Audit 76. Re-insurance 77. Provision of insurance cover and suretyships Part 3 Claims against Fund 78. Procedure for instituting claims against Fund 79. Actions against Fund 80. Subrogation 81. Claims against future revenue of Fund 82. Indemnification in respect of certain acts 83. Preservation and disposal of records and documents in possession of Board
8 CHAPTER 7 HANDLING OF TRUST MONIES 84. Obligations of attorney relating to handling of trust monies 85. Application for and issue of Fidelity Fund certificates 86. Trust account 87. Accounting 88. Trust money and trust property of trust account practice 89. Court may prohibit operation of trust account 90. Appointment of curator bonis in respect of trust account 91. Rights of banks in respect of trust account CHAPTER 8 GENERAL PROVISIONS 92. Recovery of costs by attorneys rendering free legal services 93. Offences and penalties CHAPTER 9 REGULATIONS AND RULES 94. Regulations 95. Rules CHAPTER 10 TRANSITIONAL PROVISIONS Part 1 96. Transitional South African Legal Practice Council 97. Terms of reference of Transitional Council 98. Powers and functions of Transitional Council 99. Membership of Transitional Council 100. Chairperson and deputy chairperson
9 101. Termination of office 102. Vacation of office 103. Filling of vacancies 104. Meetings of Transitional Council 105. Quorum and procedure at meetings of Transitional Council 106. Decisions of Transitional Council 107. Finances, expenditure and accountability of Transitional Council Part 2 108. Rules and regulations Part 3 109. Abolition of Fidelity Funds of former TBVC States and transfer of assets, rights, liabilities and obligations to Attorneys Fidelity Fund 110. Transitional provisions in relation to existing Attorneys Fidelity Fund Boards of Control 111. Transitional provisions in relation to qualifications 112. Transitional provisions relating to Fidelity Fund certificates 113. Existing advocates, attorneys, conveyancers and notaries 114. Persons entitled to be admitted and enrolled as advocates, attorneys, conveyancers or notaries 115. Pending proceedings 116. Transitional provisions relating to existing law societies and bar councils 117. Interpretation of certain references in laws Part 4 118. Repeal of laws and savings 119. Short title and commencement
10 SCHEDULE Laws repealed by section 118
11 CHAPTER 1 DEFINITIONS, APPLICATION AND PURPOSE OF ACT Definitions 1. In this Act, unless the context otherwise indicates "Admission of Advocates Act" means the Admission of Advocates Act, 1964 (Act No. 74 of 1964); "advocate" means a legal practitioner practising without a Fidelity Fund certificate; "appeal tribunal" means an appeal tribunal established in terms of section 37(5); "assessment" means the process under which it is determined whether a candidate legal practitioner has successfully attained the level of competence referred to in section 28; "attorney" means a legal practitioner practising with a Fidelity Fund certificate; "Attorneys Act" means the Attorneys Act, 1979 (Act No. 53 of 1979); "Auditor-General" means the person appointed as the Auditor-General in terms of section 193 of the Constitution; "bank" means a bank as defined in section 1 of the Banks Act, 1990 (Act No. 94 of 1990), and registered, otherwise than provisionally, or regarded as having been registered as a bank in terms of Chapter III of that Act; "Board" means the Attorneys Fidelity Fund Board established in terms of section 62; "candidate attorney" means a person undergoing practical vocational training with the view to being admitted and enrolled as an attorney; "candidate legal practitioner" means a person undergoing practical vocational training, either as a candidate attorney or as a pupil; "Charter" means the Legal Services Sector Charter as adopted by the legal profession of the Republic and the Minister in December 2007;
12 "code of conduct" means a written code setting out rules and standards relating to ethics, conduct and practice for legal practitioners and its enforcement through the Council and its structures which may contain different provisions for advocates and attorneys and different provisions for different categories of legal practitioners; "conveyancer" means any attorney who is registered and enrolled to practise as a conveyancer in terms of this Act or a person referred to in the definition of "conveyancer" in section 102(1) of the Deeds Registries Act, 1937 (Act No.47 of 1937); "Council" means the South African Legal Practice Council established in terms of section 4; "court" means any court in the Republic as defined in section 166 of the Constitution; "day" means an ordinary day; "Department" means the Department of Justice and Constitutional Development; "disciplinary body" means an investigating committee; a disciplinary committee; or an appeal tribunal, as the case may be; "Director-General" means the Director-General of the Department; "Fidelity Fund certificate" means the certificate referred to in section 85; "financial year" means the financial year of the Fund referred to in section 60; "Fund" means the Attorneys Fidelity Fund referred to in section 54; "justice centre" means an office of Legal Aid South Africa and includes a satellite office; "law clinic" means a centre for the practical legal education of students in the faculty of law at a university in the Republic; or a law centre controlled by, or which is, a non-profit making organisation,
13 which, subject to section 34(8), provides legal services to the public free of charge; "Legal Aid South Africa" means the Legal Aid Board established in terms of section 2 of the Legal Aid Act, 1969 (Act No. 22 of 1969); "legal practitioner" means an advocate or attorney registered as such in terms of section 30; "magistrates court" means a regional court or a district court established in terms of the Magistrates Courts Act, 1944 (Act No. 32 of 1944); "Master" means a Master of the High Court acting within the powers conferred upon him or her by law; "Minister" means the Minister of the Department of Justice and Constitutional Development; "notary" means any attorney who is registered and enrolled to practise as a notary in terms of this Act; "Ombud" means the person appointed by the President as a Legal Services Ombud in terms of section 48; "practical vocational training" means training required in terms of this Act to qualify a candidate attorney or pupil in order to be admitted and enrolled as an attorney or advocate; "prescribed" means prescribed by regulation and "prescribe" has a corresponding meaning; "pupil" means a person undergoing practical vocational training with a view to being admitted and enrolled as an advocate; "Regional Council" means a Regional Council referred to in section 23; "Roll" means the Roll of Legal Practitioners referred to in section 30(3); "rules" means the rules of the Council; "this Act" includes any regulation, rule or notice made or issued in terms of this Act; and
14 "trust account practice" means a practice conducted by one or more attorneys who are, in terms of this Act, required to hold a Fidelity Fund certificate. Application of Act 2. This Act is applicable to all legal practitioners. Purpose of Act 3. The purpose of this Act is to provide a legislative framework for the transformation and restructuring of the legal profession that embraces the values underpinning the Constitution; broaden access to justice by putting in place (i) a structure to determine fees chargeable by legal practitioners for legal services rendered that are affordable and within the reach of the citizenry; (ii) measures to provide for the rendering of community service by candidate legal practitioners and practising legal practitioners; and (iii) measures that provide equal opportunities for all aspirant legal practitioners in order to have a legal profession that reflects the demographics of the Republic; create a single unified statutory body to regulate the affairs of all legal practitioners in pursuit of the goal of a unified, accountable, efficient and independent legal profession; (d) (e) protect and promote the public interest; provide for the establishment of an Office of Legal Services Ombud;
15 (f) provide a fair, effective, efficient and transparent procedure for the resolution of complaints against legal practitioners; and (g) create a framework for the (i) development and maintenance of appropriate professional and ethical norms and standards for the rendering of legal services by legal practitioners; (ii) (iii) regulation of the admission and enrolment of legal practitioners; and development of adequate training programmes for legal practitioners and candidate legal practitioners. CHAPTER 2 SOUTH AFRICAN LEGAL PRACTICE COUNCIL Part 1 Establishment, powers and functions of South African Legal Practice Council Establishment of Council 4. The South African Legal Practice Council is hereby established as a body corporate with full legal capacity, and exercises jurisdiction over all legal practitioners as contemplated in this Act. Objects of Council 5. The objects of the Council are to facilitate the realisation of the goal of a transformed and restructured legal profession that is unified, accountable, efficient and independent;
16 ensure that fees charged by legal practitioners for legal services rendered are reasonable and promote access to legal services; (d) (e) (f) (g) promote and protect the public interest; regulate legal practitioners; preserve and uphold the independence of the legal profession; enhance and maintain the integrity and status of the legal profession; determine, enhance and maintain appropriate standards of professional practice and ethical conduct of all legal practitioners; (h) promote high standards of legal education and training, and compulsory postqualification professional development; (i) promote access to the legal profession in pursuit of a profession that reflects the demographics of the Republic; (j) ensure accessible and sustainable training of law graduates aspiring to be admitted and enrolled as legal practitioners; (k) uphold and advance the rule of law, the administration of justice, and the Constitution of the Republic; (l) (m) implement the Charter; and give effect to the provisions of this Act in order to achieve the purpose of this Act, as set out in section 3. Powers and functions of Council 6. (1) The Council must do all that is necessary or expedient to achieve its objects referred to in section 5, and may, having due regard to the Constitution, applicable legislation and the inputs of the Ombud and Parliament acquire or hire movable or immovable property;
17 develop, hypothecate, let, sell or otherwise dispose of its movable or immovable property; (d) make donations and grants in support of projects related to its objects; perform any act in respect of negotiable instruments or the electronic transfer of moneys; (e) (f) (g) (h) (i) (j) institute or defend legal proceedings on behalf of the Council; impose monetary penalties; invest Council funds; borrow or raise money; insure against any risk; delegate any of its powers and functions to its committees or Regional Councils, subject to any conditions it may impose, which delegation does not (i) (ii) divest the Council of the power or function so delegated; and preclude the Council from varying or setting aside any decision made under a delegation; (k) develop norms and standards to guide the conduct of legal practitioners and the legal profession; (l) advise the Minister with regard to matters concerning the legal profession and legal practice; (m) provide financial support to organisations or institutions providing legal education and training including legal education and training for purposes of compulsory postqualification professional development, with the object of enhancing the standards of legal services and increasing access to justice; (n) provide financial support to legal practitioners, organisations or institutions for the purpose of providing work-place training opportunities for candidate legal practitioners in deserving cases;
18 (o) provide financial support to non-profit organisations and institutions promoting access to justice for poor people; (p) consider and grant bursaries and loans to students, candidate legal practitioners and legal practitioners for the purpose of legal education and research; (q) pay for services rendered at the request of the Council with the object of enhancing the professional standards of legal practitioners; (r) do all things necessary for the proper and effective performance of its functions or the exercise of its powers; (s) (t) pay out of pocket expenses to Council members; and do all things necessary for, or conducive to the attainment of the objects of the Council and the Charter, as may be prescribed. (2) The Council, in order to perform its functions properly must employ an executive officer and such officials or staff as may be necessary to enable it to carry out its functions and determine the remuneration and other conditions of service of its officials and staff; may establish, promote, arrange, administer or assist in the establishment, promotion, arrangement or administration of insurance, medical-aid, pension, provident or benevolent schemes for the benefit of its officials and staff and the dependants of such officials and staff; may conclude agreements with any person or organisation for the performance of any particular act or particular work or the rendering of particular services for the purpose of furthering the objects of the Council; (d) may enter into contracts in connection with the performance of its functions or the exercise of its powers; (e) may pay an honorarium or an allowance to any person to cover expenses reasonably incurred by him or her in connection with any act performed on the
19 request of the Council or in terms of its directions on behalf of or for the benefit of the Council and the furtherance of its objects; (f) may enter into deeds of suretyship to the satisfaction of the Master in order to provide security on behalf of a legal practitioner in respect of work done by such legal practitioner (i) (ii) (iii) as an executor in the estate of a deceased person; as a trustee or liquidator in an insolvent estate; as a curator to the person or property in the case of a person who is unable to manage his or her own affairs; or (iv) in any other similar capacity or by any other person in such capacity where a legal practitioner acts on behalf of the person concerned; and (g) may publish or cause to be published periodicals, pamphlets and other printed material for the benefit of practitioners or the public. (3) The Council must, subject to this Act register and enrol a duly admitted legal practitioner as such; and keep a Roll of registered legal practitioners and decide on (i) (ii) (iii) the form of the certificates and the Roll to be kept; the maintenance of the Roll or issuing of certificates; and the reviewing of the Roll and the manner in which alterations may be made to the Roll. (4) The Council must, in the rules, with regard to fees and charges which are payable to the Council, determine application fees as provided for in this Act; annual fees, or portion thereof, in respect of a part of a year, payable to the Council by attorneys for Fidelity Fund certificates;
20 annual fees payable by all of legal practitioners who are admitted and enrolled in terms of section 24(1) as practising legal practitioners; (d) (e) the date on which any fee is payable; the fees, or portion thereof, payable in respect of any examination conducted by the Council or on behalf of the Council; and (f) any other fee or charge it considers necessary. (5) The Council, with regard to education in law and legal practice generally may, subject to sections 5 and 7 of the Higher Education Act, 1997 (Act No. 101 of 1997), conduct visits to any educational institution which has a department, school or faculty of law; may advise the Council on Higher Education established in terms of the Higher Education Act, 1997, regarding matters relevant to education in law; may consult with the South African Qualifications Authority established by the National Qualifications Framework Act, 2008 (Act No. 67 of 2008), or any structure established by it, to determine competency standards for the purpose of registration; (d) (e) may conduct any examination for the purpose of practical vocational training; may determine, after consultation with relevant role-players and legal practitioners in general, conditions relating to the nature and extent of continuing education and training, including compulsory post-qualification professional development; (f) must, in the prescribed manner, create a mechanism to (i) provide proper, appropriate and transformational legal education and training, having due regard to our inherited legacy and new constitutional dispensation; and
21 (ii) offer legal education and training to aspiring and newly appointed legal practitioners, as well as continued training for experienced legal practitioners; (g) may accredit training institutions that offer (i) practical vocational training courses which contribute towards the qualification of legal practitioners and candidate legal practitioners; and (ii) and compulsory post-qualification professional development; (h) must report annually to the Minister on (i) (ii) the number of new law graduates registered with the Council; the effectiveness of the training requirements for entry into the profession; and (iii) measures adopted to enhance entry into the profession, including the remuneration of candidate legal practitioners and continuing legal education to develop skills of legal practitioners, to make recommendations to the Minister regarding legislative and other interventions to improve access to the profession and access to justice broadly; and (i) must, at the request of the Minister, advise the Minister on multi-disciplinary legal practices which the Minister may consider for the purpose of developing policies and legislative and other interventions in respect of multi-disciplinary legal practices. Composition of Council 7. (1) The Council consists of the following members: 16 legal practitioners, comprising of 10 practising attorneys and six practising advocates, elected in accordance with a procedure determined by the Council in terms of the rules;
22 one teacher of law or legal academic nominated by law teachers, legal academics or organisations representing law teachers or legal academics; three fit and proper persons appointed by the Minister, who, in the opinion of the Minister and by virtue of their knowledge and experience, are able to assist the Council in achieving its objects; and (e) one person nominated by Legal Aid South Africa. (2) In constituting the Council as provided for in subsection (1), consideration must be given to the objects of the Council; achieving representivity with regard to (i) (ii) (iii) race; gender; and disability; ensuring adequate regional representation when making a nomination in respect of subsection (1); and (d) ensuring that the members of the Council, amongst them, have experience in and knowledge of (i) (ii) (iii) (iv) (v) the provision of legal services; the principles promoting access to justice; legal education and training; consumer affairs; civil and criminal proceedings and the functioning of the courts and tribunals in general; (vi) the maintenance of professional standards of persons who provide legal services; and (vii) the handling of complaints.
23 Membership of Council 8. (1) A member of the Council must be a South African citizen; be a fit and proper person; and subscribe to the objects of the Council. members of the Council: (2) The following persons are disqualified from becoming or remaining An unrehabilitated insolvent; a person declared to be of unsound mind by a court of the Republic; a person who has been convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, other than a conviction for an offence committed prior to 27 April 1994 associated with political objectives; (d) (e) persons who vacated office in terms of section 12; or a member of the Board or any of its committees. Chairperson and deputy chairperson 9. (1) At the first meeting of the Council, the members of the Council must elect and appoint a chairperson and deputy chairperson from among themselves. (2) The chairperson and the deputy chairperson hold office for a period of three years from the date of their election and may be re-elected for one further term, unless such chairperson or deputy chairperson resigns or ceases to be a member of the Council.
24 (3) The deputy chairperson must, if the chairperson is absent or is for any reason unable to act as chairperson, perform all the functions and exercise all the powers of the chairperson. (4) If both the chairperson and deputy chairperson are absent from any meeting, the members present must elect a person from among themselves to preside at that meeting and the person so presiding must, during that meeting and until the chairperson or deputy chairperson resumes duty, perform all the functions and exercise all the powers of the chairperson. (5) If both the chairperson and deputy chairperson have been given leave of absence, the members of the Council must elect a person from among themselves to act as chairperson until the chairperson or deputy chairperson resumes duty or vacates office. (6) If the office of chairperson or deputy chairperson becomes vacant, the members of the Council must, at the first meeting thereafter or as soon as may be convenient, elect from among themselves a new chairperson or deputy chairperson, as the case may be. (7) A chairperson and deputy chairperson may vacate office as such, without relinquishing his or her membership of the Council, unless his or her membership has been terminated in accordance with section 11. Term of office 10. A member of the Council holds office for a term of three years, but may be re-appointed at the end of that term for one further term.
25 Termination of office 11. (1) A person ceases to be a member of the Council when that person is no longer eligible in terms of section 8 to be a member; resigns; or vacates his or her office in terms of section 12. (2) A member may resign after giving at least three months written notice to the Council, but the Council may, on good cause shown, accept a shorter period. Vacation of office 12. (1) A member of the Council must vacate his or her office on account of a conviction for any misconduct under this Act or a conviction for any offence which, in the opinion of the Council, debars him or her from serving as a member of the Council; incapacity or incompetency; absence from three consecutive meetings of the Council without the permission of the chairperson, except on good cause shown; (d) a request by the body which or person who nominated, elected or appointed that member in terms of section 7, on good cause shown; (e) engaging in any activity that, in the opinion of the Council, undermines the integrity of the Council; or (f) the sequestration of his or her estate. (2) If the Council has commenced proceedings for the removal of a member, it may suspend that member from office. (3) A member who is suspended from office may not perform or exercise any of the powers or functions of that office or receive any allowances.
member from office. 26 (4) The Council must follow due process of law if its intends to remove a Filling of vacancies 13. (1) A vacancy in the Council occurs when (d) the term of office of a member expires; a member dies; a member vacates his or her office as contemplated in section 12; or the resignation of a member takes effect. (2) A vacancy must be filled as soon as practicably possible in accordance with the procedure referred to in section 7. Dissolution of Council 14. (1) The Minister may dissolve the Council if the Minister, on good cause shown, loses confidence in the ability of the Council to perform its functions effectively and efficiently or on any reasonable grounds. (2) The Minister may dissolve the Council only after having provided the Council with reasons for losing confidence in its abilities; given the Council a reasonable opportunity to respond to those reasons; and afforded the Council a hearing on any submissions received. (3) The Minister must, before dissolving the Council in terms of this section, appoint a judge discharged from active service in terms section 3 of the Judges Remuneration and Conditions of Employment Act, 2001 (Act No. 47 of 2001), to conduct an investigation and make recommendations to the Minister.
27 (4) If the Minister dissolves the Council, the Minister must, having regard to the provisions of section 7, appoint an interim Council, consisting of at least seven persons. The interim Council must be appointed within 21 days after the dissolution of the Council and must be appointed for a period determined by the Minister, which period must not exceed six months. (5) The Minister must from among the members of the interim Council designate a chairperson of the interim Council. The interim Council must elect a deputy chairperson from among its members and the deputy chairperson holds office for such period as the interim Council may determine at the time of his or her election. (6) The chairperson of the interim Council may, at any time of his or her own accord, or must, at the written request of not fewer than five members, convene a special meeting of the interim Council. (7) Five members of the interim Council form a quorum for a meeting of the interim Council. (8) Sections 15, 16, 17 18, and 19 apply with the necessary changes required by the context in respect of the interim Council.
28 Part 2 Operation of Council Meetings of Council 15. (1) The Council must hold at least four meetings in each year at venues to be determined by the Council and may, in addition, hold any further meetings as the Council may determine. (2) The Council must meet as soon as practicable after the appointment of its members. Quorum and procedure at meetings of Council 16. (1) The majority of the members of the Council constitutes a quorum at any meeting of the Council. (2) The Council must determine a procedure in the rules for convening meetings and the procedure for the conduct of meetings. (3) The Council must keep a record of its proceedings. Decisions of Council 17. (1) The decision of the majority of the members present at a meeting constitutes the decision of the Council. (2) In the event of a deadlock in the voting the chairperson has a casting vote in addition to a deliberative vote.
29 Committees of Council 18. (1) The Council may establish one or more committees, consisting of (i) (ii) members of the Council only; or any other suitable persons except employees of the Council, to assist the Council in the exercise of its powers and performance of its functions; and dissolve a committee at any time. (2) The Council must determine the powers and functions of a committee; must appoint a member of a committee as chairperson of such committee; may, after complying with due process of law, remove a member of a committee at any time; and (d) may determine a committee s procedure. (3) The Council must, in the rules, determine the procedure for the conduct of meetings of a committee. Executive officer and employees of Council 19. (1) The Council must appoint an executive officer for the Council, who is the accounting officer of the Council. (2) The executive officer must, in addition to such function as may be assigned to him or her in terms of this Act
30 perform or exercise any powers and functions assigned to him or her by the Council; supervise the employees of the Council; and account for the assets and liabilities of the Council. (3) The Council may appoint any other employees it deems necessary to assist the executive officer in the performance of his or her functions. (4) The procedure for the appointment of the executive officer and other employees of the Council must be determined by the Council in terms of the rules. (5) The Council must have due regard to representivity with reference to race, gender and disability when appointing the executive officer and other employees. (6) The Council must, in the rules, determine the conditions of service of the executive officer and the other employees of the Council. Executive committee of Council 20. (1) The Council must establish an executive committee and determine its powers and functions in the rules. (2) The executive committee consists of the chairperson and deputy chairperson of the Council; and four other members appointed by the Council. (3) The Council must have due regard to representivity with reference to race, gender, disability, attorneys, advocates and regional representation, when establishing an executive committee. (4) The executive committee is responsible for the day to day functioning and administration of the Council in between meetings of the Council.
31 (5) The Council may direct the executive committee to perform such tasks as it considers appropriate. (6) A member of the executive committee holds office for so long as he or she is a member of the Council, unless he or she is removed as a member of the executive committee by the Council, or his or her membership in the Council terminates in terms of this Act. (7) The Council must, from among members of the executive committee members, designate a chairperson and deputy chairperson of the executive committee. (8) The executive committee may meet as often as it deems necessary and dispose of its business in the manner it considers appropriate. Delegation of powers and assignment of functions of Council 21. (1) The Council may delegate in writing any of its powers or assign any of its functions to (d) a member of the Council; a committee of the Council; the executive committee; or a Regional Council. (2) A delegation or assignment in terms of subsection (1) is subject to any conditions and directions as the Council may impose; and does not divest the Council of the responsibility for the exercise of the power or the performance of the duty or function. (3) The Council may confirm, vary or revoke any decision taken in consequence of a delegation or assignment, but no variation or revocation of a decision may detract from any rights that may have accrued as a result of the decision.
32 Finances, expenditure and accountability of Council 22. (1) The funds of the Council consist of fees, including subscription fees payable in terms of this Act; an annual appropriation made by the Fund, the amount of which is determined by the Board after consultation with the Council; and any other monies received by the Council in terms of this Act or accruing to the Council from any other source. (2) Expenditure incidental to the exercise of the powers or the performance of the functions of the Council in terms of this Act or any other law must be defrayed from the funds of the Council. (3) The executive officer must deposit all monies received by the Council with a bank approved by the Council; may invest any monies of the Council which are not required for immediate use with a bank approved by the Council or in such other manner as the Council may determine in the rules; is charged with the responsibility of accounting for money received or paid out for or on account of the Council; and (d) must cause the necessary accounting and other related records to be kept, including proper records of all the assets and liabilities of the Council. (4) The records referred to in subsection (3)(d) must be audited by a registered accountant and auditor appointed by the Council.
33 Establishment of Regional Councils 23. (1) The Council must establish Regional Councils and may delegate to the Regional Councils such powers and functions which, in the interest of the legal profession are better performed at regional level. (2) The Minister must prescribe the areas of jurisdiction of Regional Councils after consultation with the Council. (3) The Regional Councils must carry out any powers and functions as may be determined by the Council or set out in this Act. (4) Regional Councils must be elected in accordance with a procedure determined by the Council in the rules. (5) Regional Councils must be constituted in such a manner so as to reflect the composition of the Council as far as legal practitioners are concerned; and by taking into account the following factors: (i) (ii) (iii) (iv) (v) (vi) The efficient attainment of the Council s objects; cost effectiveness; the interests of legal practitioners; regional needs, interests and sensitivities; availability of resources; and the interests of the public.
34 CHAPTER 3 REGULATION OF LEGAL PRACTITIONERS Admission and enrolment 24. (1) A person may only practise as a legal practitioner if he or she is admitted and enrolled to practise as such in terms of this Act. (2) A High Court must admit to practise and authorise to be enrolled as a legal practitioner, conveyancer or notary or any person who, upon application, satisfies the court that he or she is duly qualified as set out in section 26; is a (i) (ii) South African citizen; or permanent resident in the Republic; (d) is a fit and proper person to be so admitted; and has served a copy of the application on the Council, containing the information as determined in the rules within the time period determined in the rules. (3) The Minister may, after consultation with the Council, make regulations in respect of admission and enrolment to determine the right of appearance of foreign legal practitioners to appear in courts in the Republic and to practise as legal practitioners in the Republic; give effect to any reciprocal international agreement to which the Republic is a party, regulating (i) (ii) the provision of legal services by foreign legal practitioners; or the admission and enrolment of foreign legal practitioners; or
35 if it is in the public interest, permit a person or category of persons concerned, to expeditiously commence practising as a legal practitioner by virtue of his or her academic qualifications or professional experience. Right of appearance 25. (1) Any person who has been admitted and enrolled to practise as a legal practitioner in terms of this Act, is entitled to practise throughout the Republic, unless his or her name has been ordered to be struck off the Roll or he or she is subject to an order suspending him or her from practising. (2) A legal practitioner, whether practising as an advocate or an attorney has the right to appear on behalf of any person in any court in the Republic. Minimum qualifications and practical vocational training 26. (1) A person qualifies to be admitted and enrolled as a legal practitioner, if that person has satisfied all the requirements for (i) the degree of baccalaureus legum of any university in the Republic after pursuing for that degree a course of study of not less than four years; or (iii) a law degree obtained in a foreign country, which is equivalent to the baccalaureus legum and recognised by the South African Qualifications Authority established by the National Qualifications Framework Act, 2008 (Act No. 67 of 2008); undergone all the practical vocational training requirements as a candidate legal practitioner, prescribed by the Minister; and
36 passed a competency based examination or assessment for candidate legal practitioners as may be determined in the rules. (2) An attorney qualifies to be enrolled as a conveyancer, if he or she has passed a competency based examination or assessment of conveyancers as determined in the rules by the Council. (3) An attorney qualifies to be enrolled as a notary, if he or she has passed a competency based examination or assessment for notaries as determined in the rules by the Council. Practical vocational training 27. The Council must in the rules, determine the minimum conditions and procedures for the registration and administration of practical vocational training. Assessment of practical vocational training 28. (1) The Council must in the rules, determine a procedure and issue directions pertaining to the assessment of persons undergoing practical vocational training. (2) The purpose of assessment in terms of subsection (1) is to establish whether, in the opinion of the Council, the person has attained an adequate level of competence as determined in the rules, for admission and enrolment as a legal practitioner. (3) The assessment referred to in subsection (1) must be carried out by the Council or an appropriate institution or organisation engaged by the Council to conduct the assessment on its behalf.
37 (4) The Council must in the rules, determine the criteria for a person, institution, organisation or association to qualify to conduct an assessment in terms of this section. Prescription of community service 29. (1) The Minister must, after consultation with the Council, prescribe the requirements for community service from a date to be determined by the Minister, and such requirements may include community service as a component of practical vocational training by candidate legal practitioners; or a minimum period of recurring community service by legal practitioners upon which involving continued registration as a legal practitioner is dependent. (2) For the purposes of this section, "community service" includes service the delivery of free legal services to the public in terms of an agreement between the candidate legal practitioner or the legal practitioner with a community based organisation, trade union or non- governmental organisation; the provision of legal education and training on behalf of the Council, or on behalf of an academic institution or non-governmental organisation approved by the Council; (d) (e) (f) (g) service as a judicial officer, including as a commissioner in the small claims court; service to the State, approved by the Minister after consultation with the Council; service on regulatory structures established or recognised in terms of this Act; any other service as may be determined by the Council in the rules; or any other service which the candidate legal practitioner or the legal practitioner may want to perform with the approval of the Minister.
38 Registration with Council 30. (1) A person duly admitted by the High Court as a legal practitioner must apply to the Council in the manner determined in the rules, for registration and for enrolling his or her name on the Roll. The application referred to in paragraph must (i) (ii) be accompanied by the fee determined in the rules; indicate whether the applicant intends to practise as an attorney or an advocate; and (iii) be submitted to the Council in the manner determined in the rules through the Regional Council where the legal practitioner intends to practise. (2) The Council must enrol the applicant as an attorney, advocate, notary or conveyancer, as the case may be, if he or she complies with the provisions of this Act. (3) The Council must keep a Roll of Legal Practitioners, as determined in the rules, which must reflect the particulars of practising and non-practising legal practitioners; the name of every person admitted as a legal practitioner in terms of this Act and the particulars of the order of court in terms of which he or she was admitted; the name of every person readmitted as a legal practitioner and the particulars of the order of court in terms of which he or she was readmitted; (d) the names of all persons who were admitted and enrolled as legal practitioners before the commencement of this Act, and the particulars of the orders of court admitting them; (e) the particulars of any order of court in terms of which any legal practitioner has been suspended, whether the order was made before or after the commencement
39 of this Act, or particulars of any court order in terms of which the name of any such person has been ordered to be struck off the Roll; and (f) any amendment or endorsement against the enrolment of a legal practitioner as contemplated in section 40(3)(v). (4) Any document issued by the Council in terms of which it is certified that (d) a person has been admitted and enrolled to practise as a legal practitioner; a person has been readmitted to practise as a legal practitioner; a person has been suspended from practice as a legal practitioner; or the name of a person has been struck off the Roll, is, on its mere production, prima facie proof of the facts stated therein. (5) The registrar of the High Court which makes an order admitting and authorising a person to practise and be enrolled as a legal practitioner; readmitting and authorising a person to practise and be enrolled as a legal practitioner; or that the name of a person be struck off the Roll or that suspends a person from practice as a legal practitioner under this Act or any other law, must immediately, after the making of that order, forward a certified copy thereof to the Council through the Regional Council having jurisdiction. Cancellation and suspension of registration 31. (1) The Council must cancel or suspend the registration of a legal practitioner if
40 a High Court orders that his or her name be struck off the Roll or that he or she be suspended from practice; or he or she has erroneously been registered, or has been registered on information that is subsequently proved to be false. (2) The Council must, before cancellation or suspension of registration of a legal practitioner, notify such legal practitioner and give him or her an opportunity to be heard. (3) The Council must, as determined in the rules, notify the person referred to in subsection (1) of the cancellation or suspension of registration. (4) The Council must, at the written request of any registered legal practitioner, cancel his or her registration and remove his or her name from the Roll, but where an investigation into any alleged improper conduct by that person is in progress or is to be held, the registration may not be cancelled until the investigation has been concluded. (5) Despite the cancellation or suspension of the registration of a person in terms of this section, that person remains liable for any fee, arrears or penalty imposed by the Council for the period that he or she was registered. Conversion of registration 32. (1) A legal practitioner may, at any time, as determined in the rules and upon payment of the fee determined by the Council in the rules, apply to the Council to convert his or her registration as an attorney to that of an advocate and vice versa. (2) The Council may impose any conditions as it considers appropriate to give effect to the conversion and the provisions of this Act relating to registration.
41 (3) The Council may make rules setting out the circumstances under which a legal practitioner can apply for the conversion of his or her registration and any requirements such legal practitioner must comply with. Authority to render legal services 33. (1) Subject to any other law no person other than a legal practitioner who has been admitted and enrolled as such in terms of this Act may, in expectation of any fee, commission, gain or reward appear in any court of law or tribunal in which only practitioners are entitled to appear; or draw up or execute any instruments or documents relating to or required or intended for use in any action, suit or other proceedings in a court of civil or criminal jurisdiction within the Republic. (2) No person other than a legal practitioner may hold himself or herself out as a legal practitioner or make any representation or use any type or description indicating or implying that he or she is a legal practitioner. (3) No person may in expectation of any fee, commission, gain or reward, perform any act or render any service which in terms of any other law may only be done by an advocate, attorney, conveyancer or notary, unless that person is an advocate, attorney, conveyancer or notary, as the case may be. (4) A legal practitioner who is struck off the Roll or suspended from practice may not render services as a legal practitioner directly or indirectly for his or her own account, or in partnership, or association with any other person, or as a member of a legal practice; or